The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1887-02-27

mus. 'On the rule which precludeS nus
bands and wives from giving testimony for
or against each other IN criminal proceed
ings necessary exception has been en-
| grated at common law, when a personal
injury has been committed by the one
| against the other Were it not for this ex-
! ception, the wife would be exposed without
remedy to brutal treatment" The Criminal
Procedure Act of 1873, Section All, is as To-
| lows: Except with the consent of both, or
in cases of criminal violence upon one by
the other, neither husband nor wife are
competent witnesses for or. against each
other, in criminal action or proceeding TO
| which one or both are parties -
! Such was the common law, and such was
the st tute at the time the law now in ques-
| ton was enacted The statute now in force
is this: All persohs, without exception,
otherwise than is specified in the next two
sections, who, having organs of sense, can
perceive, ami perceiying can make known
their perceptions to Others, may be witnesses
" Section l,154, Civil Code Laws
of Utah, 1884. Section ], l56 limits this Ian
guage thus. There are PARTICULAR relaElons
IN which it is the policy of the law to en-
| courage confidence and to preserve 1t 1nVlo'
| late itherefore person cannot be examined
I in the GLOWING cases:
! IA husband cannot be exam nedstor or
against his wife, without her consent, nor
| wife for or against her husband without his
| consent, nor can either during the marriage
| or after, without the consent of the other, be
| GAd dS 10 any cOmnu
by one to the other during The marriage; but
this exec ton does not apply TO civil
| action or proceeding by one against the
| other, nor TO criminal action or proceeding
for crime committed by one against the
| other Section i54 having made the nus
band and wife competent in all cases, sec
ton 1.1j6 pr Jvides that neither without the
! consent of the other is admissible, except
in two classes of cases; first, in civil action
or proceeding by one against the other,
LON Il in nVrrr nc
or proceeding for crime committed
| by one against the other. In the later act
| the word crime is used; in the earlier,
| the phrase criminal violence upon one by
the other" In the case of the ear Ter lsW,
! violence is required, and in the later law 1t
must be the case of a crime by the one
against the other. In using terms so widely
| different in thei- import, the Legislature
must have intended to express different
meanings The language OF statute should
| be given its ordinary meaning, unless other
| parts of the act or peculiar circumsto noes
| indicate belief h It a different meaning was
| intended. The Legislature must be pre-
! Sumed to have known that crimes may be
committed by the husband against the wife
and by the wife agains. the husband, with
out personal VIC ence
4 man, who having lawful wife living,
| marrieS another woman, commits the crlme
| OF pOlygamy. is, then. polygamy a crime
AGAINST the lawful wife? 1t certainly is a
1
terms of the marriage contract. The nus
band is bound by that contract not to marry
another woman, while the marriage IS III
| force. And because il is breach of that
| contract, most hurtful in its consequences,
| it is declared to be a crime. Whenever the
act or the conduct which constitutes
! public offense or crime consists in direct
| violation of the rights OF an individual, the
crime is against that individual, as well as
against the public.
The law recogn yes the marital rights of a
woman or man, as well as tkeir rights to
| life, liberty aud security from personal
violence, aud the breach thereof by second
marriage. or by cOhabltation with another
woman as wife, is often more injurious TO
he feelings ofthe lawful wife, as well as in
other res poets, as would be deprivation OF
pers nal security o. Of personal liberty
more / furious than the shake OF list,
coupled with threat or all attempt to com
nit a 1dily injury. An attempt to poison
the wife by the husband, without violence,
is a crime az inst her, and renders her a
competent witness, without consent, in
prosecution for the crime: And 1t is often
quite as necessary for the lawful wife to
testify, in order to protect her rights against
plural marriage, in this Territory as it is 10
| rOtect ner from personal violence.
The ground upon which the exclusion of
the wife or husband rests, is that II would
des roy confidence and produce disco.'d..
MAJ in the, bed of 8 strange woman is in
very unfav ia bic situation to mist upon
pre- serving inviolate the sacred concord of
N 4rriage and harmony and confidence on
the part OF his wife.
The case of State VS.. Sloan (55 Iowa 2l7)
was an Indictment for bigamy. In the
opinion the court said: Mrs. Sloan, the
first WIFE, was allowed to testify in behalf of
the State against the defendants object on
Sections GAL OF the coce provides thar
nei her the husband nor wifi shall be wit
ness against The ether eX ept in Grim nal
proceeding for q crime committed By one
against the other. In our opinion ii the
defendanl is gu lty of bigamy, he C lmmitted
| a crime against his wife. We think she was
| a competent witness"
The S ate VS.. Hughes Us Iowa 1861 was also
a proSec1t i5n on an Indictment for bigamy.
! in that case the court said: "Phebe Hughes
| the lawful wife, was Introduced by the
! State as a witness against the defendant
objection to prove the mari ge between her
and the defendant. In this we think that
| there was no error. , he point was eX-
| pressly ruled in State VS.. Sloan 50 Iowa
2I9." To the same effects State vss Behnets
| (3l iowa 24).
Under a statute OF the State of Nebraska
permit ing husband or wife to testify IN a
criminal procee ing for a crime committed
by one against the other the Supreme Court
OF tina. State held that on the trial of husband
| on an Indictment for adultery the wife was
a competent witness against him-(Lord VS..
| Sta e, 23 Nor Western Reporter, 500. The
provisions OF the statutes under which these
eases were decided are the same in sub
| stance as the one under consideration. The
| Supreme Cour of other States have held to
the contrary under similar statutes. But
we are clearly of the opinion that upon
principle and upon authority the wife was a
coEpeteat witness, and that there was no
| error in permitting her to testify.
| Counsel for defendant, also, insist that
/ the ev dence was insufficient to justify the
verdict. The marriage of defendant TO
| Sarah Ann BasSett was admitted, and the
contention was as 10 the marriage in August.
1854. TO Kate Smith. The proof OF this
marriage consisted of confession and
circumstances tending 10 corr borate those
| confessions. In the case of Miles VS.. the
United States I103 U. S. 304) the curt held
that the first marriage might be proven, in
like manner as any other fact by the admis-
| S,Ol Of the defendant or by circumstantial
| evidence, and that it was not necessary to
prove the first marriage by witnesses who
were present at the ceremony. To the same
effect is the United States VS.. Simpson, de
cided by the Supreme Court OF Utah Pacific
Reporter, vol. 7, No. g. If a lawful mar
rage may be prOTen by such evidence we
see no reason why a polygamOus marriage
may not be proven by the same class OF evil
dence. When confessions are voluntarily
and deliberately made, correctly understood
and accurately reported, they are Of the
most re liable proof "Indeed, all rejecting
I men are now generally agreed, thst deiiber-